Three certainties Flashcards

1
Q

What are the three certainties?

A
  • certainty of intention
  • certainty of subject matter
  • certainty of objects
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2
Q

What is the requisite intention for certainty of intention?

A

intention to assume/impose a duty which is a characteristic of a trust

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3
Q

How can an intention to create an express trust be shown?

A

By words or conduct

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4
Q

What approach do courts use when ascertaining an intention to create an express trust?

A

Objective

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5
Q

What can be a good indicator (but not conclusive) of an intention to create a trust?

A
  • use of word trust
  • segregation of funds
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6
Q

What element is likely to show no intention to create a trust?

A

Vagueness

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7
Q

What are the two requirements for certainty of subject matter?

A
  • Trust property requirement
  • Beneficial entitlement requirement
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8
Q

When may it be difficult to identify trust property?

A
  • identified by description
  • identified out of a larger mass
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9
Q

Is there certainty of subject matter where the trust property is a fractional interest?

A

Yes

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10
Q

Is there certainty of subject matter where the trust property is a a specific number of items out of larger mass?

A

Yes if which ones are identified

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11
Q

When can a trust not be formed where the property is identified as a specified amount of a larger bulk?

A

Tangible assets

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12
Q

When can a trust be formed where the property is identified as a specified amount of a larger bulk?

A

Intangible, fungible assets

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13
Q

Is ‘reasonable income’ sufficient to show beneficial entitlement?

A

Yes

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14
Q

When may there be no certainty of beneficial entitlement?

A

Where there is a decider - they may die/become unable to choose

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15
Q

Which type of trust needs the most certainty of objects?

A

Fixed trusts

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16
Q

Will a fixed trust fail if there are multiple beneficiaries and some are uncertain beneficiaries?

A

No - where a beneficiary’s interest doesn’t rely on an uncertain beneficiary, they can still take their interest

17
Q

What is the complete list test?

A

Where trustees required to distribute property equally between a class of beneficiaries, must be able to draw up a complete list of beneficiaries

18
Q

What are the two further certainty requirements where the complete list test is involved?

A
  • conceptual certainty: language used to describe class
  • evidential certainty: evidence to enable identification
19
Q

What certainty test is required for powers of appointment?

A

Certainty of objects - whether someone is/is not a member of the class

20
Q

What are the certainty of objects tests requirements for discretionary trusts?

A

Carry out a survey of class depending on size
* No need for complete list – is/is not test satisfies
* Conceptual certainty still a requirement

21
Q

What was the test in Re Baden regarding whether someone was a beneficiary of a discretionary trust?

A

If they can’t prove they’re within the class, they are considered outside of it

22
Q

When may a discretionary trust fail due to the class of objects?

A

Administrative unworkability if the class is too wide

23
Q

What is the consequence where the three certainties are not satisfied and the property has not been transferred, for an inter vivos arrangement?

A

No change in beneficial ownership

24
Q

What is the consequence where property has been transferred to a trustee but there is no certainty of intention to create a trust, for inter vivos arrangements?

A

Presumed resulting trust (unless presumption can be rebutted)

25
Q

What is the consequence where property has been transferred to a trustee and there is certainty of intention to create a trust, for inter vivos arrangements?

A

Automatic resulting trust

26
Q

What is the consequence for testamentary arrangements where there is no certainty of intention to impose a trust?

A

Gift

27
Q

What is the consequence for testamentary arrangements where there is certainty of intention but no certainty of subject matter or objects?

A

Provision fails and property falls into residue